Supreme Court Hears Argument On Cellphone Towers

New York Times :
January 16, 2013
: Updated: January 16, 2013 8:56pm

WASHINGTON — In June, San Antonio and Arlington asked the Supreme Court to decide a practical question and an abstract one, both concerning how quickly local zoning authorities have to respond to applications from telecommunications companies to build wireless towers.

But the Supreme Court, which includes four former law professors with an interest in administrative law, agreed to decide only the abstract question of whether an administrative agency like the commission may determine the scope of its own jurisdiction.

At the argument of the case on Wednesday, some of the justices seemed content to tease apart the semantic distinctions posed by the second question, though there did not seem to be much enthusiasm for adding further complexity to an already tangled area.

Others appeared frustrated that the court had gone out of its way to avoid giving real-world guidance about a concrete and consequential issue.

The case concerns a 1996 federal law that requires state and local authorities to act “within a reasonable period of time” after receiving applications to build or alter wireless facilities. In response to a request from a trade association for the wireless industry, the commission made two decisions.

First, it found that it had jurisdiction to define what a reasonable time was. Second, it said that 90 or 150 days were generally appropriate deadlines, depending on the circumstances.

San Antonio and Arlington said Congress had not authorized the commission to act in the first place, pointing to a part of the law that said it was not meant to limit the power of state and local governments.

The general rules in this area were set out in 1984 in a ruling, Chevron vs. Natural Resources Defense Council, that said judges should defer to an administrative agency's views when Congress itself has not spoken clearly.

The additional question in the new case was whether Chevron's general framework applies to an agency's determination of whether it has the power to act in the first place. Several justices said it did.

“The jurisdictional question, like any other question,” Justice Antonin Scalia said, “is to be decided with deference to the agency.”

Justice Sonia Sotomayor appeared to agree, adding that it was hard to tell the two kinds of questions apart. “It's almost impossible to talk about what's jurisdictional and what's an application of jurisdiction,” she said.

A lawyer for the cities, Thomas Goldstein, responded that there are times when courts should draw distinctions between an agency's general authority to interpret a law and its specific authority to interpret a particular provision of the law based on the text of the statute.

At the end of the day, she said, it is all the same question. “We've just had some very simple rules about what gets you into the box where an agency is entitled to deference,” she said.

Solicitor General Donald B. Verrilli Jr., representing the commission, said that a uniform approach was workable. The alternative proposed by the cities, he said, would “open a Pandora's box” because there was no “clear, neat dividing line” between the two kinds of questions.

Justice Stephen G. Breyer said the court should generally defer to agencies with expertise that lawmakers lack. “Congress, which is not expert, would have wanted the FCC to figure this one out,” he said.

But Chief Justice John Roberts said there might be a special reason not to defer to the commission in this case because it concerned a conflict between federal and state powers. Federal courts, he said, are better suited to policing that boundary than “an agency of unelected bureaucrats.”